Executive Summary: Key Legal and Evidentiary Issues

• Judicial review was sought under subsection 18(1) of the Federal Courts Act regarding the Canadian Ombudsperson for Responsible Enterprise’s (CORE) decision to conclude its review of a complaint.

• The court considered whether the CORE’s final report was subject to judicial review, focusing on whether it impacted legal rights, imposed legal obligations, or caused prejudicial effects.

• The applicants argued the CORE’s final report was unreasonable and that CORE erred by narrowly interpreting its mandate and failing to provide reasons for key findings.

• The respondents maintained the report was advisory only, did not affect legal rights, and thus was not reviewable.

• The court found that the CORE’s mandate is advisory, with no authority to impose binding consequences or create new standards.

• Costs were awarded to the respondents as the successful party; no damages were awarded and the amount of costs was not specified.

Facts and outcome of the case

Background and parties

The applicants, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steel Workers), and the Canadian Labour Congress, filed a complaint with the Canadian Ombudsperson for Responsible Enterprise (CORE) on November 21, 2022. They alleged that Mark’s Work Wearhouse Ltd., a Canadian garment company and subsidiary of Canadian Tire Corporation, relied on suppliers in Bangladesh that failed to pay workers, primarily women, a living wage. The applicants requested CORE to investigate the respondents’ alleged failure to ensure their suppliers paid a living wage and to determine if they were responsible for human rights abuses in the Bangladesh garment industry. The applicants also requested several remedies, including policy changes, supply chain disclosure, negotiations with Bangladeshi trade union federations, and a formal apology.

CORE determined the complaint was admissible on December 14, 2022, and informed the applicants on December 16, 2022. CORE proceeded with an independent fact-finding investigation and shared the final version of its initial assessment report with the parties on March 14, 2024. The final report was communicated to the applicants on October 2, 2024, and published on CORE’s website on December 23, 2024. The record before the court included more than one version of the final report, but the parties agreed that the version reproduced at Exhibit N to the November 29, 2024 Affidavit of Guillaume Charbonneau Quintal was the version under review.

CORE’s decision and recommendations

In the final report, CORE detailed its fact-finding activities, addressed the issues identified in the initial assessment report, and made a series of recommendations. CORE found that what constitutes a living wage and how the right is to be operationalized lacks international consensus and remains unsettled. CORE further found that companies in Canada are not obligated to pay their workers a living wage, but rather a mandatory minimum wage, and that the Government of Canada does not provide advice on living wage standards. CORE determined that the International Labour Organization is the appropriate body to determine the content of the right to a living wage and to develop the criteria to be applied in assessing whether a human rights abuse arises. CORE concluded it was not in a position to assess the conduct of an individual Canadian company regarding an alleged failure to ensure its foreign suppliers pay an unspecified wage. CORE also outlined the actions and commitments undertaken by the respondents to address transparency issues and concluded no further follow-up was required. Seven recommendations were made, three to the Minister of International Trade and four to Canadian companies sourcing abroad.

Judicial review application and legal issues

The applicants sought judicial review of CORE’s final report, arguing that the report was justiciable, that they met the test for public interest standing, and that the report was unreasonable. The respondents argued that the final report was not a decision subject to judicial review because it did not impact legal rights, impose legal obligations, or cause prejudicial effects. The court focused on the issue of justiciability and found that CORE’s mandate is advisory only, with no authority to compel participation or impose consequences, and that its reports do not affect legal rights or obligations. The court concluded that the right to complain to CORE did not create a right to judicial review of the final report, as no legally relevant consequence flowed from the report.

Outcome

The court dismissed the application for judicial review, holding that the CORE’s final report was not justiciable as it did not impact legal rights, impose legal obligations, or cause prejudicial effects. The respondents, Mark’s Work Wearhouse Ltd. and Canadian Tire Corporation, were awarded costs as the successful party. The amount of costs was not specified. No damages were awarded.